United States District Court, D. Colorado
LOYD W. NEAL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER
LEWIS
T. BABCOCK, JUDGE.
Plaintiff,
Loyd W. Neal, appeals from the Social Security Administration
(“SSA”) Commissioner's final decision denying
his application for disability insurance benefits
(“DIB”), filed pursuant to Title II of the Social
Security Act, 42 U.S.C. §§ 401-433. Jurisdiction is
proper under 42 U.S.C. § 405(g). Oral argument would not
materially assist me in the determination of this appeal.
After
consideration of the parties' briefs, as well as the
administrative record, I AFFIRM the Commissioner's final
order.
I.
Statement of the Case
Plaintiff
is a 38 year-old veteran of the United States Army.
[Administrative Record (“AR”) 184, 199] He seeks
judicial review of SSA's decision denying his application
for DIB. Pl.'s Br., ECF No. 12 at 3. Plaintiff filed this
application on November 30, 2012 alleging that his disability
began on January 14, 2012. [AR 27]
The
application was initially denied on June 25, 2013. [AR 120]
The Administrative Law Judge (“ALJ”) conducted an
evidentiary hearing on November 13, 2013 and issued a written
ruling on December 5, 2013. [AR 24-77] In that ruling, the
ALJ denied Plaintiff's application on the basis that he
was not disabled because, considering his age, education, and
work experience, he had the residual functional capacity to
perform jobs that exist in significant numbers in the
national economy. [AR 37] The SSA Appeals Council
subsequently denied Plaintiff's administrative request
for review of the ALJ's determination, making SSA's
denial final for the purpose of judicial review. [AR 728-30];
see 20 C.F.R. §404.981.
Plaintiff
timely filed his complaint with this court seeking review of
SSA's final decision. On October 30, 2015, I reversed and
remanded the case back to SSA. Neal v. Colvin, No.
14-CV-01855-LTB, 2015 WL 5607831 (D. Colo. Sept. 24, 2015)
(unpublished); [AR 734-53] The basis of my decision was that
the ALJ erred by: (1) insufficiently considering certain
medical records; (2) insufficiently analyzing the
Veteran's Administration's (“VA”) rating
decision for Plaintiff; and (3) not giving due consideration
to Plaintiff's credibility. [AR 740-53]
On
remand, the same ALJ held an evidentiary hearing on April 26,
2016, and issued a second written decision dated June 9,
2016. [AR 645-708] The ALJ again ruled that Plaintiff was not
disabled because through his date last insured, Plaintiff was
capable of performing work that existed in the national
economy. [AR 665-66] Plaintiff again appealed, and the SSA
Appeals Council upheld the ALJ's decision. [AR 629-34]
Plaintiff timely filed the current Complaint with this court
seeking review of the Commissioner's decision.
II.
Relevant Medical History
The
medical records begin with Plaintiff's therapy
appointments with Clark Jennings, M.D. Plaintiff's
interaction with Dr. Jennings continue throughout the record,
and are summarized here. Dr. Jennings began seeing Plaintiff
regarding his mental impairment beginning in 2008. [AR 623]
The records of Dr. Jennings' appointments with Plaintiff
begin on February 10, 2011. [AR 588] The records are
relatively brief and regard Plaintiff's medication
management. [Id.]
Plaintiff
was, in part, assessed with PTSD with sleep agitation and
daytime focus problems. [Id.] Dr. Jennings noted
that Plaintiff appeared well-groomed, was edgy or fatigued,
had mild depression or tension, a coherent thought process
and no psychotic symptoms, oriented cognition, and competent
memory. [Id.] The record noted a follow-up in four
weeks, but the next record is on November 11, 2011, as an
“urgent appointment as recommended by the patient's
therapist, Jackie Grimmett.” [AR 587]
Plaintiff
was assessed with “PTSD with a history of sleep
agitation, cognitive impairment, or associated mood disorder
with some degree of manic features.” [Id.] In
his mental status evaluation, Dr. Jennings noted that
Plaintiff appeared “dramatically dressed[, ] much
better than when I last saw him” with “mild
psychomotor activation, ” moderate to severe emotional
liability, oriented cognition, competent memory, and racing
thoughts and distractibility. [Id.]
Dr.
Jennings prescribed various medications, including the
anticonvulsant Depakote, the antidepressant Prozac, the
anticonvulsant and analgesic neurontin, the sedative and
insomnia drug Ambien, the antipsychotic Abilify, the
antianxiety medication Xanax, and the antidepressant
trazadone. [AR 583-85]
On
February 16, 2012, Dr. Jennings noted that it was
“increasingly obvious this individual suffers from
rather severe chronic mental illness” and that
Plaintiff exhibited “a rather chronic mild to moderate
thought disorder with paranoid and religious trends.”
[AR 585] Dr. Jennings noted mixed success with medications.
[AR 580, 583-85]
On
November 7, 2012, Dr. Jennings' noted in Plaintiff's
mental status evaluation that he was much better groomed with
a “Native American” appearance, pleasant
behavior, minimally anxious dysphoria affect, improved
thought organization, no imminent dangerousness, oriented
cognition, mild distractibility, and competent memory. [AR
580]
On
November 21, 2013 Dr. Jennings completed a mental impairment
questionnaire where he diagnosed Plaintiff in part with
bipolar I, PTSD, and insomnia disorder. [AR 623] In
describing the clinical findings which justify his diagnosis
of Plaintiff, Dr. Jennings noted “colorful Native
American garb, ” moderate anxious affect with
occasional flight of ideas, and cyclic manic symptomology.
[Id.] On a list of mental abilities needed for
unskilled or semiskilled work, Dr. Jennings mostly noted that
Plaintiff would be unable to meet competitive standards. [AR
625-26] Dr. Jennings checked boxes that stated Plaintiff
would be absent from work more than four days per month (the
greatest option); that Plaintiff's impairment would last
over twelve months; that Plaintiff was not malingering; and
that Plaintiff's impairments were reasonably consistent
with his symptoms and functional limitations. [AR 627]
Additional
records were added after SSA's initial denial. On April
8, 2014, Dr. Jennings wrote that Plaintiff
“[i]ntermittenly struggles with mild depression,
episodes of sleep instability, and episodes of irritability.
In many ways patient feels like he is coping much more
effectively.” [AR 888] The final record is from October
2014 when Plaintiff presented with acute grief due to the
loss of his son. [AR 889] Dr. Jennings prescribed Kolopin
instead of Xanax regarding Plaintiff's stress.
[Id.]
Concerning
a prior SSA disability filing, on February 24, 2011, Dowin H.
Boatwright, M.D. completed a consultative exam on Plaintiff.
[AR 311] Plaintiff presented with complaints of: (1) a
traumatic brain injury; (2) posttraumatic stress disorder
(“PTSD”); (3) a left shoulder injury; and (4)
temporomandibular joint disorder. [Id.] Dr.
Boatwright noted that Plaintiff submitted no medical records
for him to review. [AR 311]
Dr.
Boatwright explained that Plaintiff
was pleasant, cooperative, and in no acute distress. He
appeared to sit comfortably during the exam and without
pain-mitigating movements. He did not appear uncomfortable
getting on and off the examination table, removing shoes, and
arose spontaneously and unaided from a seated position
without discernible discomfort. He appeared his stated age,
was appropriately dressed and groomed, and remained
appropriate throughout. He did not appear particularly
anxious, agitated, or drowsy and responded appropriately with
adequate effort throughout. He appeared to have no difficulty
with hearing during our discussion and speech was clear and
coherent.
[AR 312] Concerning the traumatic brain injury and PTSD
diagnoses, Dr. Boatwright recommended that Plaintiff follow
up with specialists. [AR 314]
Dr.
Boatwright provided a function assessment and wrote that
“[t]here are no recommended limitations on the number
of hours that the patient is able to sit, stand, or walk.
There are no manipulative or environmental limitations
recommended. Postural limitations include abducting greater
than 130 degrees. The patient should be able to lift twenty
pounds continuously, twenty five pounds frequently, [and] up
to fifty pounds occasionally.” [Id.]
Also on
February 24, 2011, R. Terry Jones, M.D. examined Plaintiff.
[AR 315] Dr. Jones reviewed Plaintiff's medical and
psychiatric records and noted that Plaintiff presented with,
in part, traumatic brain injury and PTSD. [Id.]
Regarding symptoms of PTSD, Dr. Jones noted that Plaintiff
had “nightmares and night terrors several times a week,
some flashbacks during the day in terms of intrusive
thoughts, hypervigilance, exaggerated startle response,
increased irritability and ease of anger and avoidance of
large crowds.” [AR 318] Dr. Jones noted in his
conclusion that Plaintiff, while on a tour of duty in Iraq,
suffered a number of traumatic events, resulting in PTSD. [AR
319]
Dr.
Jones added that Plaintiff “does have crying spells at
least once a week, no suicidal ideation or history of suicide
attempts, no significant anhedonia, but he does have some
mild anergy.” [Id.] Plaintiff did not identify
with feelings of helplessness, hopelessness or worthlessness,
nor presented with symptoms of psychomotor retardation.
[Id.] He also noted that Plaintiff was
“managing his own money and paying his own bills and he
appears to be capable of doing so based upon this
evaluation.” [Id.]
In
November 2011, Plaintiff began to receive home care through
the VA. [AR 488-89] Melody Hernandez, Plaintiff's
partner, became the primary family caregiver. [Id.]
Generally, the assistance needed related to mental
difficulties in daily life, such as sleep management,
planning and organizing, delusions, recent memory lapse, and
self-regulation of moods. [AR 501-03]
In
August 2013, Jill Watson, M.D. completed a disabled person
parking application for Plaintiff as “he [could not]
walk 200 feet without rest and is limited overall in [his]
ability to walk due to arthritis condition.” However,
Dr. Watson added that Plaintiff also marked that he could not
walk without support, such as a cane, but that he had walked
into and out of the clinic without aid, so it did not apply.
[AR 443]
On
January 14, 2013, Melissa A. Polo-Henston, PsyD performed a
compensation and pension exam in regards to Plaintiff's
application for VA benefits. [389-90] Dr. Polo-Henston
reviewed Plaintiff's VA medical files and performed the
analysis related to Plaintiff's PTD and traumatic brain
injury. [AR 390]
Dr.
Polo-Henston noted in her claim review that Plaintiff was
evaluated in 2009 “with anxiety, anger and depression,
and increased alcohol use. He had a traumatic brain injury
screen which was deemed to be negative on June 16, 2006. He
was referred to behavioral health on June 6, 2008 and
diagnosed with posttraumatic stress disorder.”
[Id.] Dr. Polo-Henston added that in April 2010
Plaintiff had a traumatic brain injury evaluation (named the
St. Louis University Mental Status Exam) and scored 26 out of
a possible 30, indicating that his score was within normal
limits. [Id.] In Dr. Polo-Henston's mental
status exam, Plaintiff took the same test and received a
score of 22 out of 30, “which is unusual to see in a
younger person.” [AR 392]
Dr.
Polo-Henston noted that Plaintiff “appeared his stated
age, had tattoos and Native American jewelry and symbols. He
was casually dressed and neatly groomed. His affect was
normal. His speech was normal rate, tone, and pressure. His
eye contact is good. His thought process is linear and goal
directed.” [Id.]
Dr.
Polo-Henston noted that Plaintiff did not make a good effort
on various neuropsychological tests. [AR 393] In her
assessment, Dr. Polo-Henston stated that Plaintiff still
presented symptoms of PTSD, but they were successfully
stabilized with medication and therapy. [AR 394] She added
that Plaintiff was “able to work but requires a
supportive environment where his mental health issues are
understood.” [Id.] Dr. Polo-Henston did not
find Plaintiff to have a traumatic brain injury, but did find
that due to his PTSD, Plaintiff
is able to maintain activities of daily living including
personal hygiene. He has not experienced significant trauma
over the last year. There has not been worsening of his
condition. There have not been remissions; symptoms are
continuous. He does not have problems with drug and alcohol
abuse at this time. There is not inappropriate behavior. He
is in treatment and has responded. Medications are present
and have been helpful. Thought process and communication are
not impaired. Social functioning is impaired, as [Plaintiff]
has difficulty with being stimulated in crowds. Employment is
somewhat impacted due to psychological issues, as the Veteran
has not worked since he discharged. He has attempted school
several times. He has difficulty with crowds and gets
overwhelmed easily and needs a supportive environment. The
Veteran denies postmilitary stressors. Other than the
diagnoses listed, no other mental conditions were found. The
Veteran is competent to handle VA funds.
[Id.]
On
January 25, 2013 by referral from Mary Louise Langlois, M.D.,
radiologist Gregory R. Wein found no “fracture,
dislocation or bone destruction” in Plaintiff's
right knee, but ...